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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-03-NY-066
US Cable of Paramus-Hillsdale, LLC. )
Montvale, NJ ) NAL/Acct. No.
200332380023
)
) FRN: 0007 2502 69
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: September 18,
2003
By the District Director, New York Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that US Cable of Paramus-Hillsdale, LLC. (``US
Cable'') has apparently violated Sections 11.61(a)(1)(iii),
11.61(a)(2)(i)(B), and 11.61(b) of the Commission's Rules (the
``Rules''),1 by failing to conduct required monthly and weekly
tests of the Emergency Alert System (``EAS'') and failing to
maintain station records of required monthly and weekly EAS test
messages. We conclude that US Cable is apparently liable for a
forfeiture in the amount of three thousand dollars ($3,000).
II. BACKGROUND
2. On May 14, 2003, a Commission agent conducted an EAS
inspection of US Cable's headend location at 590 Valley Health
Plaza, Paramus, NJ 07652. Based upon the agent's inspection of
US Cable's station records, he determined that US Cable failed to
conduct required monthly tests of the EAS header codes, Attention
Signal, Test Script, and EOM code from December 2002 to April
2003, and failed to conduct required weekly tests of the EAS
header and EOM codes from December 1, 2002 to May 10, 2003. US
Cable failed to maintain EAS equipment so that it was capable of
receiving monthly EAS test messages from December 2002 to April
2003. The agent also found that US Cable failed to maintain
station records of required monthly EAS tests received from
December 2002 to April 2003, and state reasons why EAS tests were
not received.
III. DISCUSSION
3. Section 11.61(a)(1)(iii) of the Commission's Rules
requires cable systems to conduct required monthly tests of the
EAS header codes, Attention Signal, Test Script, and EOM code
that conforms to procedures in the EAS Operating Handbook, and
Section 11.61(a)(1)(v) 2. US Cable's station records showed that
required monthly tests of the EAS header codes, Attention Signal,
Test Script, and EOM code were not conducted from December 2002
to April 2003.
4. Section 11.61(a)(2)(i)(B) of the Commission's Rules
requires cable systems to conduct required weekly tests of the
EAS header and EOM codes at least once a week at random days and
times. US Cable's station records showed that required weekly
tests of the EAS header and EOM codes were not conducted from
December 1, 2002 to May 10, 2003.
5. Section 11.61(b) of the Commission's Rules requires
cable systems to make entries in station records of monthly and
weekly EAS tests received. Entries were not made in the station
records of monthly EAS tests received from December 2002 to April
2003, or reasons why required EAS tests were not received.
6. Based on the evidence before us, we find that, US Cable
willfully3 and repeatedly4 violated Sections 11.61(a)(1)(iii),
11.61(a)(2)(i)(B), and 11.61(b) of the Rules by failing to
conduct required monthly tests of the EAS header codes, Attention
Signal, Test Script, and EOM code from December 2002 to April
2003, failing to conduct required weekly tests of the EAS header
and EOM codes from December 1, 2002 to May 10, 2003, and failing
to log entries of reasons why required monthly EAS tests were not
received from December 2002 to April 2003.
7. The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines, 12 FCC Rcd 17087, 17113 (1997), recon.
denied, 15 FCC Rcd 303(1999) (``Forfeiture Policy Statement''),5
sets the base forfeiture amount for failure to make required
measurements or conduct required monitoring at $2,000, and base
forfeiture for failure to maintain required records at $1,000.
In assessing the monetary forfeiture amount, we must take into
account the statutory factors set forth in Section 503(b)(2)(D)
of the Communications Act of 1934, as amended,6 (``Act'') which
include the nature, circumstances, extent, and gravity of the
violation, and with respect to the violator, the degree of
culpability, any history of prior offenses, ability to pay, and
other such matters as justice may require. Applying the
Forfeiture Policy Statement and the statutory factors to the
instant case and applying the inflation adjustments, we believe
that a three thousand dollar ($3,000) monetary forfeiture is
warranted.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Communications Act of 1934, as amended,7 (``Act'')
and Sections 0.111, 0.311 and 1.80 of the Commission's Rules8, US
Cable is hereby NOTIFIED of their APPARENT LIABILITY FOR A
FORFEITURE in the amount of three thousand dollars ($3,000) for
willful and repeated violations of Sections 11.61(a)(1)(iii),
11.61(a)(2)(i)(B), and 11.61(b) of the Commission's Rules.
9. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Commission's Rules, within thirty days of the release date of
this NOTICE OF APPARENT LIABILITY, US Cable SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
10. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note the
NAL/Acct. No. 200332380023 and FRN: 0007 2502 69.
11. Any response to this NAL must be mailed to Federal
Communications Commission, Enforcement Bureau, Spectrum
Enforcement Division, 445 12th Street, S.W., Washington, D.C.
20554 and MUST INCLUDE THE NAL/Acct. No. 200332380023.
12. The Commission will not consider reducing or canceling
a forfeiture in response to a claim of inability to pay unless
the petitioner submits: (1) federal tax returns for the most
recent three-year period; (2) financial statements prepared
according to generally accepted accounting practices (``GAAP'');
or (3) some other reliable and objective documentation that
accurately reflects the petitioner's current financial status.
Any claim of inability to pay must specifically identify the
basis for the claim by reference to the financial documentation
submitted.
13. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Revenue and Receivable Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.9
14. Under the Small Business Paperwork Relief Act of 2002,
Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC is
engaged in a two-year tracking process regarding the size of
entities involved in forfeitures. If you qualify as a small
entity and if you wish to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30)
days of this NAL, either in your response to the NAL or in a
separate filing to be sent to the Spectrum Enforcement Division.
Your certification should indicate whether you, including your
parent entity and its subsidiaries, meet one of the definitions
set forth in the list provided by the FCC's Office of
Communications Business Opportunities (OCBO) set forth in
Attachment A of this Notice of Apparent Liability. This
information will be used for tracking purposes only. Your
response or failure to respond to this question will have no
effect on your rights and responsibilities pursuant to Section
503(b) of the Communications Act. If you have questions
regarding any of the information contained in Attachment A,
please contact OCBO at (202) 418-0990.
15. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested to US Cable of Paramus-Hillsdale, LLC., 28 West Grand
Avenue, Montvale, NJ 07645.
FEDERAL COMMUNICATIONS
COMMISSION
Daniel W. Noel
District Director
New York Office
Attachment A - FCC List of Small Entities, October 2002
_________________________
1 47 C.F.R. §§ 11.61(a)(1)(iii), 11.61(a)(2)(i)(B), and 11.61(b).
2 47 C.F.R. § 11.61(a)(1)(v).
3 Section 312(f)(1) of the Act, 47 U.S.C. 312(f)(1), which
applies to Section 503(b) of the Act, provides that ``[t]he term
`willful', when used with reference to the commission or omission
of any act, means the conscious and deliberate commission or
omission of such act, irrespective of any intent to violate any
provision of this Act ....'' See Southern California
Broadcasting Co., 6 FCC Rcd 4387 (1991).
4 Section 312(f)(2), which also applies to Section 503(b),
provides: [t]he term ``repeated'', when used with reference to
the commission or omission of any act, means the commission or
omission of such act more than once or, if such commission or
omission is continuous, for more than one day.
547 C.F.R. § 1.80.
6
47 U.S.C. § 503(b)(2)(D).
7
47 U.S.C. § 503(b).
847 C.F.R. §§ 0.111, and 0.311.
9 See 47 C.F.R. § 1.1914.